Clark v. Secretary of Health and Human Services

Opinion

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0332V Filed: February 27, 2019 UNPUBLISHED

DEREK CLARK,

Petitioner, Special Processing Unit (SPU); v. Ruling on Entitlement; Concession; Table Injury; Influenza (Flu) Vaccine; SECRETARY OF HEALTH Shoulder Injury Related to Vaccine AND HUMAN SERVICES, Administration (SIRVA)

Respondent.

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner. Meredith Burns Healy, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT1

Dorsey, Chief Special Master

On March 5, 2018, Derek Clark (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the “Vaccine Act”). Petitioner alleges that he suffered a right shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to his right shoulder on November 15, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

On February 27, 2019, respondent filed his Rule 4(c) report in which he concedes that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent states that “petitioner has satisfied the criteria for SIRVA set forth in the recently revised Vaccine Injury Table (‘Table’) and the Qualifications and Aids to Interpretation (‘QAI’), which afford petitioner a presumption of causation if petitioner had no recent history of pain, inflammation, or dysfunction of his right shoulder, pain occurred within 48 hours after receipt of an intramuscularly- administered vaccination, pain was limited to the shoulder in which the vaccine was administered, and no other condition or abnormality, such as brachial neuritis, has been identified to explain petitioner’s shoulder pain.” Id. at 4. Respondent further agrees that “based on the medical records outlined above, petitioner suffered the residual effects of his condition for more than six months. Therefore, based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act.” Id.

In view of respondent’s position and the evidence of record, the undersigned finds that petitioner is entitled to compensation.

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master